This regular second appeal by Lai is against the judgment and decree of affirmance passed by the learned Additional District Judge, Gujranwala dated 12--.6-1979 arising out of a suit for declaration filed by Lai Khan on 8-1-1971 before the learned Civil Judge, Gujranwala.
2. The brief facts in the background of the case are that on 9-1-1971 Lai filed the suit for declaration to the effect that he was owner in possession of 143 Kanals 6 marlas completely detailed in para. No.3 of the plaint, that decree for possession passed by the learned Civil Judge, Gujranwala dated 7-4-1966 in favour of Muhammad Bibi, Rabia Bibi and Rasul Bibi (herein respondents) is illegal, without jurisdiction and contrary to the facts and is therefore unbinding on plaintiff, with permanent injunction restraining the respondents from interfering in the possession of the plaintiff in the suit land.
3. It was averred in the plaint that one Kadar Dad was owner of 85 Kanals 10 Marlas of agricultural land in Mauza Tariwala Tehsil and District Gujranwala: On his death he was survived by Mst. Mchran Bibi (the predecessor-in-interest of Muhammad Bibi, Rabia Bibi, Rasul Bibi and Fatch Din) his sisters and brother Fateh Din who got the mutation of inheritance in respect of land of Kadar Dad recorded on 21-5-1954 as sole heir in exclusion of Mst. Mchran Bibi' The said Fateh Din made a sale of whole land in favour of Lai through registered sale--deed dated 28-1-1953.
4. Feeling aggrieved by the registered sale-deed dated 28-1-1953 Muhammad Bibi, Rabia Bibi and Rasul Bibi riled the suit for possession in respect of their share to the extent of 2/9 share in 85 Kanafs 10 Marlas as an heir of Kadar Dad on 21-3-1964 before the Civil Judge, Gujranwala. The suit was contested by Lai. The learned, Civil Judge by judgment and decree dated 7-4-1966 decreed the suit to the extent of right of 2/9 share in agricultural land left by Kadar Dad but unfortunately while the decree-sheet was prepared, the 2/9 share was mentioned in 153 Kanals 6 Marlas.
5. The appeal of Lai failed before the learned Additional District Judge vide judgment and decree dated' 1-6-1967. The same fate met with the appeal of Lai in High. Court, vide judgment and decree dated 7-6-1967.
6.Muhammad Bibi and others decree-holders in civil suit of 1964 applied for execution, obtained the warrant of possession which was executed and a constructive possession was delivered to the decree-holders in joint Khata. Having come to know about the nature of the decree, Lai filed objection petition on 18-9-1970 to the effect that according to judgment and decree dated 7-4- 1966, the decree-holder was entitled to 2/9 share in 85 Kanals 10 Marlas and decree was ineffective against the other property of the petitioner which was his self-- acquired property. However the objection petition was dismissed on technical grounds and the petitioner was directed to file declaratory suit.
Accordingly Lai filed a suit on 8-1-1971. The suit was resisted. The objections were taken to the effect that the suit was barred by the principles of res judicata as the same question between the same parties was adjudicated by the learned Civil Judge on 7-4-1966. The judgment and decree of the trial Court dated 7-4-1966 was affirmed in first Court of appeal as well as in High Court; that the instant suit was barred by time; the plea of estoppel was taken. On merits it was admitted that Kadar Dad was the owner of 85 Kanals 10 Marlas.
7. The learned Civil Judge framed as many as 9 issues in accordance with the divergent pleadings of the parties. Issues are as follows:- (1)Whether the suit is barred by time? OPP (2)Whether the suit is barred by res judicata? OPD.
(3)Whether the plaintiff is estopped from bringing this suit? OPD.
(4)Whether the plaint does not disclose any cause of action? If so, what effect? OPD.
(5)Whether the suit is hit by the mischief of the provisions of Section 42 of the Specific Relief Act? If so what effect? OPD (6)Whether this Court lacks jurisdiction to try this suit? OPD.
(7)Whether the impugned decree dated 7-4-1966 is liable to be set aside for the reasons detailed in paragraphs Nos.2 to 6 of the plaint? OPD (8)Whether the defendants are entitled to special costs under Section 35-A of C.P.C.? If so to what extent? OPD.
(9)Relief.
8. In order to substantiate the respective contentions Lai produced PW.1, who produced Jamabandi EXh.P.1. PW.1 Muhammad Ali, PW.2 Ali Muhammad were produced to depose that Lai was owner of 19/1-4 acres while Kadar Dad was the owner of 5/1-4 acres and 14 acres were acquired by La l.; That Wanda Ishtamal was inclusive of both the properties of Kadar Dad as well as the self---acquired property of Lai. Lai himself appeared as PW.4 and tendered in evidence documentary evidence which is not material for the purpose of the case.
9.Respondents/defendants Muhammad Bibi and others tendered the documentary evidence and did not produce oral evidence nor have they entered into witness-box.
10. Learned Civil Judge by judgment and decree dated 9-7-1975 dismissed the suit. The learned Civil Judge came to the conclusion that the suit was barred by time. According to his conclusion the limitation started from the date of decree i.e. 7-4-1966 and the suit should have been filed before 7-4-1969. On issue No. 2 (on the question of res judicata), the learned Civil Judge held that the suit was barred by the principles of res judicata. Issues Nos.4, 5, 6 and 8 were decided in favour of plaintiff. As far as issue No.7 (issue on merits) is concerned, it was decided in favour of the plaintiff. It was held that in decree-sheet dated 7-4-1966 relating to suit of 1-9-1964 contained the self-acquired property of Lai as well.
11. The first Court of appeal vide judgment and decree dated 12-6-1979 dismissed the appeal and affirmed the finding of the trial Court on the issue of limitation and issue of res judicata as well as on the issue of merits.
12. Feeling dissatisfied with the impugned decisions Lai has filed this regular second appeal.
12.A. On the issue of limitation it was contended that both the Courts have committed error of law to apply the principle laid down in Abdul Hamid alias Md. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357. It was contended with vehemence that instant suit was not for the cancellation of the decree dated 7-4-1966 but it was a suit for declaration to the title that the appellant was in possession of 143 Kanals 6 Marlas which was self-acquired property and share of Fateh Din purchased by Lai and was exclusive of the property decreed in favour of Muhammad Bibi and others. Reliance was placed on the provision of Article 120 in schedule of Limitation Act and it was submitted that the suit was within time as his objection petition was dismissed in 1971. It was actually on 18-9-1970 when warrant of possession was executed and the appellant came to know about the patent error in the decree on 18-9-1970.
13. Learned counsel for the appellant on the question of res judicata contended that in previous suit, the question relating to title of land of Lai in respect of his self-acquired property plus the share of Fateh Din was not the subject-matter of dispute. The suit related to the claim of Muhammad Bibi and others as the legal heirs of Mst. Mehran Bibi from the legacy of Kadar Dad.
Neither the title of Lai in respect of his self-acquired property was averred in the plaint nor it was put in issue between the parties, therefore, the finding of both the Courts on the basis of principle, of res judica:a is totally unwarranted. Reliance was placed on Mst. Sohni v. Sharaf Khan and others 1975 SCMR 335 and Section 11 of the Code of Civil Procedure.
14. It was finally contended that both the Courts below have returned a positive finding on issue No.7 which was issue on merits between the parties so it was incumbent upon the first Court to decree the suit.
15. Learned counsel for the respondent supported the impugned decisions and reiterated the same arguments that the present suit barred by time as well as it was barred by the principle of res judicata. However he did not question the finding of both the Court .On issue No.7. He even did not challenge the argument of appellant that as far as the question of title relating to self-acquired properties of Lal is concerned it was not the subject-matter of the first suit.
16. I have carefully heard the arguments of the parties and gone through the record of the case.
17. In order to determine the contentions of the parties it will be appropriate to examine the finding of the first Court on issue No.7, which is as follows:- "Relying upon the Jamabandi for the year 1964-65 Ex.P2 the plaintiff has contended that his Khata No. Was 57 before consolidation and against that Khata No. He owned land measuring 170 Kanals 5 mls. In consolidation as shown by register Scheme No.81/57 Exh.P-18, the owner of Khata No.57 has been given land measuring 153 Kanals 6 Marlas in lieu of previous holding measuring 170 Kanals 5 Marlas, from this it is clear that the plaintiff got land measuring 153 Kanals 6 Marlas in lieu of a total area measuring 170 Kanals 5 Marlas, which included 85 Kanals 10 Marlas purchased by him from Fateh~ Din and which was originally the property of Kadar Dad and the rest was self-acquired and ancestral land of the plaintiff himself. This point has not been seriously rebutted by the defendants.
It is thus clear that in the impugned decree self-acquired land ancestral land of the plaintiff has also been erroneously included but in view of my findings on issues Nos.1 to 3 the decree cannot be declared invalid. The issue is decided against the plaintiff and in favour bf the defendants.
18. The same finding was affirmed by the first Court of appeal. It is quite clear to me and is almost without any dispute that Muhammad Bibi and others filed a suit for possession in respect of their rights of 2/9 in the legacy left by one Kadar Dad. It is also not in dispute that Kadar Dad was owner of 85 Kanals 10 Marl6S and Mst. Mehran Bibi and Fateh Din were the two heirs as a residuary being brother and sister. On the face of it Mst. Mehran Bibi was entitled to 2/9 share from 85 Kanals 10 Marlas. In plaint the share of Mst. Mehram Bibi was calculated as 2/9 share and so the first Court decreed the suit upto 2/9 share in the legacy left by Kadar Dad. This decree was affirmed upto the High Court. The question needing examination is as to whether Lal could file a suit for declaration to the effect that the erroneous entry in the decree of 2/9 share with respect to 153 Kanals 6 Marlas was competent or hit by the principle of res judicata.
19. I will proceed first to determine this contention. The principle of res judicata is contained in S.11 of the Code of Civil Procedure and is founded upon a principle of justice and equity. The justice requires that every cause should be once fairly tried and public tranquillity requires that having been tried once all the litigation about the cause should be concluded for ever between those parties. The maintenance of public order, the repose of society and the quiet of families require that whatever has been definitely determined by competent Tribunals shall be accepted as irrefragable legal truth. The following conditions are conditions precedent to the application for res judicata:-- (1)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively, in the former suit.
(2)The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim.
(3)The parties as aforesaid must have litigated under the same title in the former suit.
(4)The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.
(5)The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.
20. The principle of res judicata has come into consideration in various judgments a few of which may be noticed. In Muhammad Shafi and another v. Sardar Khan and 6 others (PLD 1974 Lah. 235) his Lordship Mr. Justice Zaki-ud--Din P.1, J. Dealing with the applicability of the principle of res judicata to validity of already obtained decree observed as follows:- "The question to be seen is as to whether the present suit, in the circumstances is hit by the provisions of section 11 C.P.C. Or not. It is true that in a case where the validity of a decree is challenged plea of res judicata cannot be raised, but if in a previous suit the said plea has already been taken and decided then subsequently on the basis of the same plea will be barred by res judicata. Under section 11, C.P.C. No Court shall try a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. As mentioned above, the plea that respondent No.7 was only a benamidar and had filed the pre-emption suit for the benefit of respondents Nos. 1 to 5 was raised by the appellants, but the same was rejected by the trial Court after framing issue and taking evidence in this regard. If such plea had not been taken in the previous suit, then the position would have been different. In the case of Mst. Izzat and another v. Oadir Bakhsh relied upon by the learned counsel for the appellants in order to show that plea of res judicata cannot be taken in a case where decree has been challenged on account of fraud, no' such plea was taken in the trial Court that the decree in that case was being obtained on account of misrepresentation and fraud. The appellants after having taken the plea of benamidar in respect of respondent No-7, which amounted to show that the suit had been filed for the benefit of respondents Nos. 1 to 5 and, as such fraud was being played upon the Court as well as them, failed to prove the same. Since the matter in issue in a former suit between the same parties therefore, the present suit would be hit res judicata.
1975 SCMR 335) following observation was made in respect of the principle of res judicata: The cause of action in the two suits was entirely different. The first suit was for possession of land. In the second suit the compromise decree on which the first suit was disposed of was challenged.
Hence no question of res judicata could possibly arise."
21. The same principle was reiterated in Mst. Gul Farosha v. Umar Gul and 11 others (1985 CLC 810).
22. It is unnecessary to repeat the other case-law on the subject. The principle emerging from the bare reading of section 11 of the Code of Civil Procedure and the case-law is that the principle of res judicata is not applicable B where the subject-matter of litigation between the parties in previously instituted suit and suit under adjudication is entirely different.
23. Applying these principles to the facts of the case it is quite clear to me that suit of 1964 related to the share of Mst. Mehran Bibi which was usurped by Fateh Din; It did not pertain to the determination of the title of Lai in respect of his self-acquired property. Therefore, I have no hesitation in coming to the conclusion that the finding of both the Courts below on issue of res judicata is clearly illegal and cannot be sustained. This Court is entitled to reverse the C finding if it is tainted with misapplication of law on the face of the record. Accordingly I set aside the finding of Civil Judge and the learned Additional District Judge, Gujranwala on the issue of res judicata and find that the principle of res judicata was not applicable to this case.
24. Now I will proceed to determine the question of limitation. Both the Courts were legally impressed by the rule laid down in Abdul Hamid v. Dr. Sadeque Ali Ahmed and others (PLD 1969 Dacca 357), which proceeded on entirely distinguishable and on different facts. In the present case as already noted above, it was a suit with respect to declaration of title in respect of the self--- acquired property of Lal from Fateh Din and other sources. It was not the suit for mere cancellation of decree of 1966. In such a situation in Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143) his Lordship Mr. Justice Kaikus, J. While dealing with the question of limitation observed as follows: "There remains the plea of limitation. The suit is said to be time barred on two grounds, that first being that the gift deed not having been challenged within three years the suit was barred under Article 91 of the Limitation Act and the second that the plaintiffs have failed to prove dispossession within twelve years and the suit is barred under Article 142.
Article 91 of the Limitation Act provides a limitation of three years for a suit "to cancel or set aside an instrument, not otherwise provided for" and the terminus a quo is the date when the facts entitling the plaintiffs to have the instrument cancelled or set aside become known to him." The suit with which we are, dealing is a suit for possession of land but it cannot be doubted that if in order to get the relief of possession it be necessary for the plaintiffs to have an instrument set aside, Article 91 will be applicable. The criterion, however, for the application of Article 91 will be whether the instrument is effective till it is set aside. If an instrument be such that it has produced legal effect but some person has the option to have it set aside so that it will be rendered without effect a suit has to be filed for setting it aside and a suit for any other relief which relief cannot be granted unless the instrument is set aside will also be governed by Article 91. On the other hand if the instrument has not produced any legal effect at all, it does not stand in need of being set aside and Article 91 will not be attracted by the mere facts that reliefs asked for cannot be granted unless the instrument is found to be ineffective or void. No person is bound to sue for a declaration that an instrument is void from its inception though it should be explained here that a suit for cancellation of even a void instrument does not lie. Between cancellation and setting aside there is a distinction though it is not always kept in view. An instrument that produces no effect does not stand in need of being set aside, and the use of the expression setting aside is inappropriate in respect of a void instrument. Cancellation of an instrument has however a different meaning. According to section 39 of the Specific Relief Act a person may sue for cancellation of an instrument which is "void or voidable". The relief granted by the section is that the instrument will be "delivered and. Cancelled".
The reason why even in respect of void instruments a person is granted the relief of cancellation is, as appears from section 39 itself, that such instrument "if left outstanding may cause him serious injury". However if in respect of a void instrument no suit for cancellation is brought within three years it does not acquire any validity and remains ineffective as before.
25. The same principle was reiterated in Mst. Izzat v. Allah Dittah (PLD 1981 SC 165), where it was held that a person in possession of land filed a suit seeking declaration to mutation in regard of land and registered deed being void and ineffective only as ancillary relief the main relief claimed was for the protection of possession and issuance of permanent injunction. It was held that neither Article 91 nor 95 was applicable and the case was covered by Article 120 in Schedule to Limitation Art 26. Following respectfully the ratio laid down in the aforesaid authorities to the facts of the case it is clear to me that suit was decreed on 7-4-1966. The learned Additional District Judge dismissed the appeal on 1-6-1967. The second appeal failed in the High Court on 7-6-1968. Muhammad Bibi and others filed an execution application and obtained warrant of possession in 1970. It was on 18- 9--1970 when objection petition was dismissed on technical grounds. It was only in 1970 when symbolical possession under decree was obtained when Lai came to know about threat to his ancestral and self-acquired property. He accordingly filed a suit on 8-1-1971. In the suit on the face of it the main relief was declaration D in respect of title of Lai in respect of his self-acquired property from Fateh Din as well as other sources. Therefore, the relief with respect to the decree of 1966 was merely ancillary and was aimed at correction of patent error in the decree, therefore, no doubt is left in my mind that the suit is governed by Article 120 of the Schedule to the Limitation Act and the suit was clearly within time. Therefore, I have no difficulty in- coming to the conclusion that finding of both the courts on the issue of limitation is in defiance of provisions of the law and cannot be sustained. I accordingly set aside the finding of both the Courts on the issue of limitation and find that suit is within time.
27. Lastly the question remains as to what is the relief which the plaintiff/appellant is entitled in this case. I have perused the record. From the pleadings of the parties it is quite clear that Kadar Dad was the owner of 85 kanals 10 marlas. Mst. Mehran Bibi was entitled to 19 kanals while Fateh Din was entitled to 66 kanals 10 marlas according to the decree of the Court in the ratio of 2/9 and 7/9.
28. In order to determine the correct entitlement of the parties I have examined the documentary evidence on the record. From jamabandi relating to the year 1951-52 it is clear that Lai was owner of 11 kanals in Khata No.23 and owner of 8 kanals 4 marlas in Khata No.25. Through Mutation No.269 attested on 25-1-1961 he purchased 59 kanals 3 marlas from Mehmud Ali, Jamshed Ali and Khuda Bakhsh. So Lai became owner of 78 kanals 17 marlas in exclusion to the land sold by Fateh Din. After purchasing land from Fetch Din, he became owner of 164 kanals 7 marlas. At this stage the Mauza went into consolidation proceedings and a wanda of 153 kanals 6 marlas was sanctioned in favour of Lai instead of 164 kanals 7 marlas.
29. It is to be noticed that Mst. Mehran Bibi was according to the decree in her favour given 2/9 share in the legacy of 85 kanals 10 marlas so her entitlement came to be 19 kanals. During consolidation proceedings the entitlement of Mst. Mehran Bibi suffered reduction of 1 kanal 6 marlas in proportion to her entitlement.
30. The net result of aforesaid ascertainment is that the respondents were granted decree to the extent of 17 kanals 14 marlas while the rest of 135 kanals 12 marlas was the land which belonged to Lai.
31. In result the regular second appeal is accepted, the judgment and decree passed by the learned Civil Judge, Gujranwala dated 9-7-1975 and the judgment and decree passed by the learned Additional District Judge, Gujranwala dated 12--6-1979 are hereby set aside. The plaintiff is granted declaration to the effect that the plaintiff is owner in possession of 135 kanals 12 marlas in accordance with the record of rights. In view of the complicated nature of the case, the parties are left to bear their own costs.